Readers will be aware that the Justices of the Peace Review Council Hearing Panel which decided to recommend removal of a judicial officer from office and denied a recommendation for compensation for the cost of defending the allegations against him proceeded to make a very public referral of this writer to the regulating body of lawyers in Ontario.(see Fired JP Loses Bid to Have Taxpayers Pay Legal Fees - Lawyer's Conduct to Be Reviewed by Michel Mandel, Toronto Sun, June 17th, 2015 see also on Twitter, Deborah Livingstone@dresdengirrl - Retweet of "JP Fired Over Lecherous Behaviour Loses Bid to Have Taxpayers Pay $600,000 in Legal Fees - June 17, 2015 @ 6:02 p.m)
The Hearing Panel stated clearly in its referral addendum and decision that the conduct which concerned them was not relevant and did not impact their decisions including the Compensation Decision - in which they refused to recommend that the Attorney General for Ontario compensate the subject judicial officer for the cost of his defence of the proceedings contrary to the constitutional tradition in Ontario and indeed in Canada generally for so doing. (Toronto Star - "Public Pays Millions for Legal Fees of Federal Judges Under Investigation - Jan.3rd,2015)
Did the Hearing Panel wish to insulate their refusal to recommend compensation for legal costs and the referral to the governing body from judicial scrutiny ?
Panel's Findings on Bills
of Costs and My Representation
In the Case Not Capable of
Appellate Review:
The Hearing Panel made what I believe to be unfounded allegations that several motions which I initiated on behalf of the subject judicial officer were "without merit" and that my involvement was "limited to handling the preliminary motions" even though the transcripts of all twenty-three attendances in the case show that I was present. Presenting Counsel had two and sometimes three lawyers present on hearing dates and JP Massiah had two.
Although the Hearing Panel expressly stated on October 8th, 2014 that all motion materials and facta filed with them would be made part of the "record of proceedings" in the event that there are "any further proceedings involving our decisions" the motion records, facta and the extensive written submissions made by the parties including the Bills of Costs of both Mr. House and myself were not part of the "record of proceedings" before the Divisional Court.
"Cut and Paste" of
Presenting Counsel's
Written Submissions*:
A reviewing court is therefore unable to judicially review the litany of conclusionary findings made by the hearing panel on the Compensation Decision even if it wanted to. (see R v. Sheppard [2002] 1 S.C.R. 869 - Neinstein v. LSUC 2010 ONCA 193 (Canlii) A reviewing court could and should properly find on the basis of Sheppard (supra) and Neinstein (supra) that the reasons do not lend themselves to appellate review and quash the decision. There is a real danger that it could also restate and rely upon what ever errors the lower court or tribunal made. That would be an error of law.
What the hearing panel did in its compensation decision is merely "cut and paste" holus bolus Presenting Counsel's Reply Submissions on Disposition at paragraph 2 and their written submissions on Compensation at paragraph 2. The following paragraph from their Compensation Decision is the introduction to this "cut and paste":
[24] We reject Mr. Massiah's assertion that, in relation to numerous pre-hearing motions, his defence was "clearly well-grounded on recognized and viable procedural grounds." We agree with and reiterate below examples included in Presenting Counsel's submissions which highlight a number of the frivoulous motions brought by Mr. Guiste on behalf of his client.
(see Cojocaru v. B.C. Women's Hospital [2013] 2 S.C.R. 357 where the court ruled that "If the incorporaation of the material of others is evidence that would lead a reasonable person to conclude, taking into account all relevant circumstances, that the decision-making process was fundamentally unfair, in the sense that the judge did not put his or her mind to the facts, the argument and the issues, and decide them impartially and independently, the judgment an be set aside."
Curiously, the Hearing Panel went on to find in its Compensation Decision that everything done by my co-counsel, Mr. Jeff House, who so happens to be a Caucasian man was fine. This was so even though Mr. House was involved in every motion initiated on behalf of the judicial officer except for the publication ban and bias motions. Mr. House was my co-counsel for 13 of the 23 months while the case proceeded.(May, 2014 to June, 2015) From June 2013 to November 2013 I was co-counsel with another lawyer, Mr. Eugene Bhattacharya, who was not subject to a referral to the governing body of lawyers in Ontario. This lawyer was my co-counsel during the initiation of the jurisdiction and abuse of process motion and the publication ban motion. Mr. Bhattacharya and his co-counsel, now Justice T. Carey, of the Superior Court of Justice were both paid for their work in defending the same judicial officer notwithstanding a finding of judicial misconduct against him.
Overlap with Motion
for Abuse of Process:
The Hearing Panel proceeded to summarily dismiss the Bias Motion proclaiming that it was their view that it is "completely without merit." In dismissing the motion the Hearing Panel clearly declined to consider the question put to them on the obvious fact that the allegations in the Notice of Hearing drafted by Presenting Counsel exceeded anything which could be found by them to constitute the complaint in writing. This is what they wrote in their own words:
[56] The Applicant has filed another motion that there was no valid complaint and that there has been an abuse of process ("Motion for Abuse of Process"). The Applicant has inserted some of the grounds raised in that motion in his factum on this motion. A decision from the Panel is pending on its jurisdiction to consider grounds raised in the Motion for Abuse of Process. It would, therefore, be in appropriate for the Panel to proceed to adjudicate upon grounds raised in the Motion for Abuse of Process as if that decision were not pending.
[57] In conclusion, having considered the submissions of counsel, the Panel can find no basis, on any of the grounds asserted by the Applicant, to quash the Notice of Hearing or to recuse itself.
Here is a copy of the factum I filed with the JPRC on the bias motion in May, 2014. This factum was not before the Divisional Court. There is no doubt that it raises questions about the fairness of the process which my client was subjected to, including the fact that there was a "lack of commonality"* between the Notice of Hearing and anything that could be found by them to be the complaint in writing and the lack of independence and impartiality in the current office of Presenting Counsel provided for by the JPRC Procedures. This I understand to be the job of the lawyer and manifestly in the public interest.
* The vast majority of the submissions in this case were made in writing. None of the written submissions filed on behalf of the judicial officer are in the "record of proceedings". The only written submissions of the parties proper in the "record of proceedings" is Presenting Counsel's Reply Submission on Liability.
JUSTICE OF
THE PEACE REVIEW COUNCIL
IN THE
MATTER OF a complaint(s) respecting
JUSTICE OF
THE PEACE Errol Massiah
Justice of
the Peace in the
Central
East Region
APPLICANT’S FACTUM
PART-
I
ARGUMENT IN BRIEF
1. The
Applicant respectfully requests the Hearing Panel to rule on the following
points of law:
(i) Does the current process of complaint-intake,
investigation and
adjudication
of judicial misconduct complaints under
the Justices of the Peace Act give rise to a
reasonable
apprehension
of bias – generally – such that it violates the
constitutional
doctrine of judicial independence ?
(ii) If not – Do the particular facts with
respect to the
intake,
investigation and adjudication of this matter
give
rise to a reasonable apprehension of bias ?
(iii) Did the Chair of the Review Council have
jurisdiction
to
replace Ms. Blight from the Hearing Panel and
if
so
– does this remedy concerns of reasonable apprehension
of
bias ?
(iv) Do the matters raised in the Notice of
Motion and supporting
affidavit
establish a reasonable apprehension of bias by
the
Hearing Panel ?
(v) Did the Hearing Panel exceed its
jurisdiction by
retaining
Independent Counsel ?
(vi) If not – did the Hearing Panel display a
reasonable
apprehension
of bias by virtue of their stated
reason
for doing so ?
Facts:
Complaint Processing:
2. The
Applicant places reliance on the facts deposed to in his supporting affidavit
on his jurisdiction
and abuse of process motion as well as the facts in his initial motion
record on
that motion and the responding motion record of presenting counsel.
3. The
Justices of the Peace Review Council(Review Council) consists of 13
individuals and
the Chair is the Chief Justice of the Ontario Court of Justice,
Annemarie E.
Bonkalo. Two
judges of the Ontario Court of Justice and the Chief
Justice sit on the Review
Counsel making
for a total of three judges.
4. Complaints
of judicial misconduct against a justice of the peace go to the
Review Council.
5. Upon
receipt of a complaint, the Review Council selects 3 members from
among its members to comprise a complaints committee
whose job it is to investigate
the complaint. The
committee must consist of a judge – who shall chair; a justice of
the peace and
a member who is neither a judge or a justice of the peace.
6. When
its investigation is complete, the complaints committee is authorized
to make
any of
the following decisions:
1. dismiss the complaint if it is frivolous,
an abuse of
process or outside
the jurisdiction of the complaints
committee;
2. invite the justice of the peace to
attend before the
complaints committee
to receive advice concerning
the issues in the complaint
or sent the justice of the
peace a letter of advice concerning
the issues raised
in the complaint, or both;
3. order that a formal hearing into the
complaint be held by
a
hearing panel; or
4. refer the complaint to the Chief
Justice of the Ontario
Court
of Justice.
7. The
complaints committee must report to the Review Council on its decision
pursuant
to s.11(18)
8. S.11(19)
expands on the complaints committee’s discretion to dismiss a complaint
at anytime
if it is of the opinion that the complaint is frivolous, an abuse of process or
outside
the jurisdiction of the complaints committee.
9. While
the complaints committee requested a written response to the allegations
from the
Applicant, this response was not put to any of the witnesses, the Applicant was
not
interviewed and the Applicant made no submissions to the complaints committee
on the question of whether the allegations were frivolous, an abuse of process or
outside
the jurisdiction of the complaints committee.
10. Although
the Chief Justice had the Applicant attend gender based sensitivity
training
with Ms.
Freedman and she prepared a report for the Chief Justice that report
was not
before the
complaints committee for their consideration.
11. The
complains committee provided no reasons for its s.11(15) decision ordering
a
hearing.
12. The
Applicant has been subjected to three separate sets of complaints.
Accordingly, this
would mean that 3 sets of complaints committee and 2 sets of
Hearing Panels would
have dealt with the Applicant to date.
Assuming that there is
no overlap, this would
involve 15 individuals but the Review Council has only
13 members. In light of
the three sets of complaints committee and two hearing panels
which the
Applicant has
experienced, there necessarily must have been some overlap
among the judges.
13. Although the Applicant has made reasonable requests for the identify of the
persons who sat on the three sets of complaints committees involving him that
information has yet to be provided by the Review Council or Presenting Counsel.
14. It
is known that the following non-judicial officer members have sat on either
a
Hearing Panel or
a complaints committee involving the Applicant: Dr. M. Phillips,
Ms. Margot
Blight and Ms.
Leonore Foster.
“Presenting
Counsel”
15. “Presenting
Counsel” is the name given to the lawyer retained by the Review
Council to prosecute the case before the Hearing Panel. According to Presenting
Counsel’s e mail
dated May
15th, 2014: “The Registrar, in her capacity as the
Registrar and counsel, has the responsibility of retaining
Presenting
Counsel on behalf of the Review Council as a body.”
16.
It is Presenting Counsel who prepares the Notice of Hearing.
17. It
is clear on the face of the Notice of Hearing that the 14 counts alleged
go
beyond the proper ambit
of any complaint which could be said to have
been received by the Review Council.
Arbitrariness/Bias:
18. In
a letter dated January 14th,
2014 Presenting Counsel clearly and unequivocally
stated that
the “complainants” in this case are the witnesses who are
expected to testify about the alleged misconduct by His
Worship’s
conduct” in response to a
specific question as
to who was the complainant in
this matter.
19. On
April 9th, 2014 Presenting Counsel made the following submissions to
the
Hearing Panel on the
writing requirement and who was the complainant:
“So our
position in respect of s.10.2 is very simple. There was a
complaint,
it was by a person and it was in writing, and a
complainant
is the person who puts the complaint in writing
to
the Justices of the Peace Review Council, in that case,
in
this case that was Mr. Hunt. The people
who were late
interviewed
are the witnesses”
20. In
their factum dated July 19th, 2013 Presenting Counsel made the
following
submission to The
Hearing Panel on the issue of non-compliance by the complaints
committee with
the requirements
of s.10.2(3):
“In
any event, even if the Review Council finds that the there
was
not technical compliance with the
in-writing requirement
or
the direction contemplated under s.10.2(3), Presenting
Counsel
submits that any non-compliance is minor and should
not
cause result in the loss of jurisdiction.”
21. In
written submissions to the Hearing Panel
dated March 13th, 2014 Presenting
Counsel appears to take a different position:
“While
the Hearing Panel takes its jurisdiction from the
Notice
of Hearing and does not sit in judgement of the
complaints
committee, His Worship’s grievance appears
to
amount to an allegation that there was no complaint
in
writing received by the Council that meets the
requirements
of section 10.2 or the complaint was
prohibited
by that section; and that there was an
abuse
of process that has undermined the fairness
of
the proceedings before the Panel. This is something
that
the Hearing Panel has jurisdiction to determine.”
22. At
paragraph 21 of their March 13th,, 2014 submissions to the Hearing
Panel
Presenting Counsel
made the following submission:
“A
true jurisdictional defect in the chain of proceedings
resulting
in the hearing would arguable entitle the Panel
to
decline to conduct a hearing on the merits....So too
in
this case, the Hearing Panel, would arguable be
entitled
to find that a jurisdictional defect in the process
leading
to the hearing deprived it of jurisdiction or
amounted
to an abuse of process. Section 23 of
the
Statutory
Powers Procedures Act, which is made applicable
to
this hearing by virtue of s.111(4) of the Justices of the
Peace
Act, provides:
23(1) A tribunal may make such orders or give
Such
directions in proceedings before it as it considers
proper
to prevent abuse of its processes.”
Error in legal submission
to Hearing Panel by
Presenting Counsel:
23. At
paragraph 24 of their March 13th, 2014 submissions Presenting
Counsel made
the following erroneous
legal submission to the Hearing Panel regarding the legal
holding in Hryciuk v. Ontario 31 O.R. (3d) 1 (C.A.):
“The
case demonstrates the propriety of the Hearing Panel
(or
in that case the inquiry judge) considering whether the
Screening
process contemplated in the legislative framework
has
been satisfied. If the statutory scheme was complied with
- i.e. a person made a written complaint to
the Council; the
complaint
was investigated by a complaints committee; the
complaints
committee determined that as a result of its
investigation
that there were allegations of judicial misconduct
which
had a basis in fact which, if believed, could result in a
finding
of judicial misconduct; the particulars of the
allegations against
the respondent which (sic)be be the subject
of the hearing were set out in a Notice of Hearing; and the
complaints committee
had jurisdiction to order those
allegations to a
hearing – then the Hearing Panel can be
satisfied that it has
the jurisdiction to proceed to hearing the
evidence in relation to those allegations. If His
Worship seeks
to aruge
that the complaints process should be different (eg
his
response should be shown to witnesses; or a
complaints
committee should not order a public
hearing
in circumstances where the allegations have
a
basis in fact, which, if believed, could result in a
finding
of judicial misconduct), then he can pursue
his
remedy if and when he chooses to apply for judicial
review of any disposition made by the Hearing Panel.”
24. On
April 9th, 2014 Presenting Counsel made the following submission of
law to
the Hearing
Panel on s.11.1(1):
“So
this is a mandatory provision. The
hearing is mandatory
when
a complaints committee makes that disposition, which
it
did in this case. It does not
contemplate any review of how
the
complaints committee came to that disposition or whether
it
was reasonable and fair in doing so. It
does not give the
Hearing
Panel any ability to second-guess the disposition
that
was made by the complaints committee.”
25. Presenting
Counsel went on to state the following on April 9th, 2014:
“Now
I want to say very clearly that in our view
there
is no merit to any of those allegations. There’s
been
no evidentiary basis put forward before you
to
substantiate any of them, and that the claim of
unfairness
and impropriety that have been made so
far
entirely are without any foundation.”
Later
at p.43 of the April 9th, 2014 transcript:
“your
jurisdiction is part and parcel of the issue you
are
being asked to adjudicate because you do not have
jurisdiction
to sit in appeal of the complaints committee’s
decision.”
26. Then
at p. 45:
“So
to the extent that my friend is saying that something
that
happened here is making it impossible for His Worship
to
obtain a fair hearing, we have neither evidence of that,
submissions
on how that is possible, and we certainly
have
no proof in the form of an actual proceeding ongoing
because
we haven’t heard any of the witnesses yet.
Those
are
my submissions.”
27. Then
at p.131:
“Let
me make a more general comment about my friend’s
submissions. You have had a glimse of what is to come if
this
motion is not construed and adjudicated in a manner
consistent
with the limited jurisdiction of this panel...This
will
turn into a never-ending inquiry into the investigation
in
this matter, into the prior hearing, which is no part of
your
mandate, and into the investigation preceding the
prior
hearing, if appropriate constraints are not imposed.
Objection not headed:
28. “Well
no. It is your determination but its
proper for me to
object
and what I’m doing is raising an objection that what
he’s
telling you is a scare tactic and has nothing to do with
Proper
reply, that somehow you have to do as he suggests,
otherwise
all hell is going to break loose, is what I understand
from
his submission, and I think that is improper reply. The
purpose
of reply is address specific points that I may have
raised
and to bring that up.”
Justice
Livingstone: Thank you very much.
Mr.
Gourlay: “...I want to make
it very clear to the panel our concern, that
extensive
public expenses are being incurred in this hearing,
that
presenting counsel is under an obligation to be mindful
Of
that and to do our best to limit the hearing to its proper
scope.
Presenting Counsel point
published in Toronto Sun:
29. Presenting
Counsel’s submission about “extensive public expenses are being
incurred” and Massiah’s
lawyer must be reigned in or “this will turn into a never-ending
inquiry.” was captured
by Toronto Sun reporter Michele Mandel and published
on April 10th,
2014.
Impact on Panel:
30. At
p. 50 the Chair of the Hearing Panel states:
“But,
as I recall Mr. Gourlay’s submissions, it was that once
the
complaints committee makes its disposition and a hearing
is
ordered, then our jurisdiction simply is to conduct a hearing.
We
don go behind the order to have a hearing.
We are the
hearing.
“Isn’t
that what the legislation says ?
31. At
p.73:
“Can
you show me where in the statute it gives this
Hearing
Panel the power to go where you’re asking
us
to go ?”
32. At
p. 74:
“The
problem is what I understand you are asking us to
do
is go to what the complaints committee did and
investigate
them basically, and as a result of that make
a
ruling.”
33. At
p.111:
“So
I am struggling with your argument, sir, that it was
inherently
incorrect that the complainants in these matters
the
witnesses that your are alluding to, may or may not
have
been the ones who actually initiated the complaint.
I
don’t see the requirement that they had to sir. Could
you
assist me please.”
At
p.117:
“But
my point is you were arguing a narrow issue that
none
of the complainant submitted the complaints, they
came
from another person. A fairly clear
reading, a plain
reading
of 10.2 suggests they didn’t have to.”
....”Any
person may make a complaint to the Review Council
about
the conduct of a justice of the peace.
Any person, sir,
not
the complainant.”
....”Well,
sir, you are disgressing. Would you
address the issue
I
have asked, please. Is there a section
in the Act specifically
says
the complaint has to come from the complainant ? You
suggested
to me there is other than 10.2 sub(1), which you and I
may
have different interpretation of that.”
34. Chair
of the Hearing Panel orders a 9:30 a.m. start on next attendance
disregarding counsel for
His Worship’s reasonable request for accommodation
on account of his childcare obligations.
Post-Hearing
Decisions:
35. Following
the April 9th, 2014 the Hearing Panel decided to retain independent
counsel, Mr. Gover,
and to change the start time to 10 a.m. from 9:30 a.m. in the
absence of the Applicant
and in fact without his knowledge.
36. In
written correspondence dated May 15th, 2014 to His Worship’s counsel
Presenting Counsel delineated the relationship between
her office and the Review
Council in the following words:
“The
Registrar, in her capacity as the Registrar and
counsel,
has the responsibility of retaining Presenting
Counsel
on behalf of the Review Council as a body.”
37. The
Applicant has request a copy of Presenting Counsel’s retainer agreement
with
the Review
Council but that has yet to be produced.
38. At
the April 9th, 2014 hearing either Presenting Counsel or the
Registrar provided
counsel for His
Worship with a copy of a document entitled “Justices of the Peace
Review Council Procedures
Document” – Revised January 24th, 2014. This document
contains a new Provision
which reads: “The Justices of the Peace Review
Council has no jurisdiction to allow the withdrawal of a complaint.”
PART
II - THE LAW:
Reasonable Apprehension
of Bias Test:
38. “In
the words of the Court of Appeal, that test is
“what
would an informed person, viewing the
matter
realistically and practically – and having
thought
the matter through – conclude. Would he
think
it more likely than not that Mr. Crowe,
whether consciously or unconsciously, would not
decide fairly.”
whether consciously or unconsciously, would not
decide fairly.”
Comm.For
Justice v. Nat Energy Board [1978] 1 S.C.R. 370
39. The duty of fairness applies to all
administrative bodies.
reasonable apprehension of bias with regard to their decision.
Administrative bodies that are primarily adjudicative
in their functions will be
expected to comply with the standard applicable to courts; there must be
no reasonable apprehension of bias with regard to their decision.
Nfld.
Telephone v. Nfld Public Utilities [1992] 1 S.C.R. 626
40. A denial of a right to a fair hearing
cannot be cured by the tribunal’s
subsequent decision of the tribunal. The damage created by the apprehension
of bias can not be remedied. The hearing, and any subsequent order resulting
from it, must be void.
subsequent decision. A decision of a tribunal which denied the parties of a
fair
hearing cannot be simply voidable and rendered valid as a result of
the subsequent decision of the tribunal. The damage created by the apprehension
of bias can not be remedied. The hearing, and any subsequent order resulting
from it, must be void.
As
above
41. The law pertaining to apprehension of
bias in the context of a hearing
panel where one member of the panel has been found or acknowledged
to raise an issue of bias was addressed by the Divisional
Court in Roberts
v. College of Nurses of Ontario 1999 Canlii
18725. Mullan’s Administrative
Law is quoted in the
following words:
“A reasonable
apprehension of bias in one member of a tribunal
is
sufficient to disqualify the whole tribunal, even thought that
member
merely sat at the hearing without taking an active
role in
either it or subsequent deliberations.
Mere presence
is generally
enough.”
Right
to Retain
Independent
Counsel:
42. A clear reading of s.8(15) stipulates
that only the Review Council can
retain counsel for its complaints committees and
hearing panels.
43. Under the “Procedures Document” the role
of legal counsel engaged
under this Part shall not be to seek a particular order
against a respondent,
but to see that the complaint against the Justice of the peace is evaluated
fairly
and dispassionately to the end of achieving a just result.
JPRC
PROCEDURES..
44. It is a principle of fundamental justice
and fairness that no one will judge his own cause.
MacBain v.
CHRC [1985] F.C.J. No. 907
45. The enabling legislation and procedures
raises a reasonable
apprehension of bias by virtue of the following:
1. Review Council receives complaints
2. Review Council passes them off to its
subset complaints
committee
committee
3. Complaints committee is supposed to
investigate but
here it delegated to a hired third party
here it delegated to a hired third party
4. Chief Justice had the applicant take a
9 hour
Gender
Sensitivity & Professional Boundaries
course
but did not disclose this to the complains
committee;
5. Ms. Blight stepped down on account of
concerns
with
a reasonable apprehension of bias;
6. Chief Justice replaced her;
7. Review Council retained Presenting
Counsel;
8. Review Council appears to amend its
Procedures to
suit
itself and without fair notice;
46. Alternatively, the multitude of issues
raised in the NOA and the
transcripts support a finding of a reasonable apprehension
of bias in
accordance with the established legal principles.
accordance with the established legal principles.
PART IV - ORDER REQUESTED
47. The Applicant requesting an order
quashing the Notice of Hearing on
account of a
loss of jurisdiction or reasonable apprehension of bias or in the
alternative an
order that the entire panel recuse itself.
ALL
OF WHICH IS RESPECTFULLY SUBMITTED.
May 16th, 2014
E. J. Guiste, Co-counsel for the
Applicant
NOTE: This piece is published to draw attention to an issue of public importance. A motion asserting a reasonable apprehension of bias in any legal proceeding is a very important and fundamental right in our system of law. This is especially the case in a judicial misconduct proceeding where at the outset a pattern and history of misconduct is improperly alleged in a Notice of Hearing. When a hearing panel takes the unusual step to make a public referral of misconduct against one of two of the subject judicial officers lawyers contrary to the referral policy of the governing body for lawyers in the province - the one of African-Canadian racial background and the one who initiated a motion raising a reasonable apprehension of bias - then questions of public importance arise. Those issues are compounded when, as here, the "record of proceedings" filed on behalf of the tribunal with the reviewing court is deficient for what ever reason - even if inadvertent.
This JPRC referral raises discrete and serious questions of public importance.
Is Ernest J. Guiste being censored and punished for merely doing his job as a lawyer ?
NOTE: This piece is published to draw attention to an issue of public importance. A motion asserting a reasonable apprehension of bias in any legal proceeding is a very important and fundamental right in our system of law. This is especially the case in a judicial misconduct proceeding where at the outset a pattern and history of misconduct is improperly alleged in a Notice of Hearing. When a hearing panel takes the unusual step to make a public referral of misconduct against one of two of the subject judicial officers lawyers contrary to the referral policy of the governing body for lawyers in the province - the one of African-Canadian racial background and the one who initiated a motion raising a reasonable apprehension of bias - then questions of public importance arise. Those issues are compounded when, as here, the "record of proceedings" filed on behalf of the tribunal with the reviewing court is deficient for what ever reason - even if inadvertent.
This JPRC referral raises discrete and serious questions of public importance.
Is Ernest J. Guiste being censored and punished for merely doing his job as a lawyer ?
Assume for the purpose of argument that I was involved in defending a man of murder.
The trial judge disregarded 16 legal authorities or more which I brought to his or her attention - including 3 from the Supreme Court of Canada and 2 from the Court of Appeal, denied my client of a right to reply to a significant point calling for a reply and stated to me after agreeing to entertain a motion I was bringing that it was a "pyrhic victory", ruled me in contempt for seeking leave to bring a motion for directions on behalf of my client, and then publicly referred me to the Society, could my treatment by the trial judge be reasonably divorced from my client's conviction by the trial judge in all of the circumstances ? I raise these questions not to suggest that I have the answer to them but simply to highlight the highly significant interests which are involved in issues of this nature.
Regrettably, history show us that miscarriages of justice and wrongful convictions do not happen by accident.
No comments:
Post a Comment